The Struggle is Real – Legal Challenges to Modern Disposition of Human Remains

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Disposition of human remains is the practice and process of dealing with the disposal of dead bodies.  Because death is the ultimate unifying experience common to all human beings, the development of death care rituals has been a cultural necessity since the beginning of time.  Several methods of disposition have been practiced throughout history, often dominated by spiritual concerns and a desire to show respect for the dead.  Religion and legal jurisdiction have become more involved, particularly in modern times, insofar as setting rules and regulations for disposition of human remains.

Governments have long recognized and exercised a police power to control corpse disposal through legislation as a matter of public interest – i.e. protection of public health, safety and welfare – such that disposition of human remains has long been subject to the control of law rather than left entirely to the desire and discretion of the deceased or next of kin.

Today, the two most common methods of disposition are traditional burial and cremation – so how did cremation, which has certainly seen its own share of controversy, rise to the ranks of status quo?

Although the concept of incinerating human remains is by no means anything new (archaeologists have found evidence of cremation dating back at least 20,000 years ago), the method certainly did not become standard practice overnight. In fact, during the the middle ages, cremation was forbidden by law – and even punishable by death [to be fair, so were the “heathenous acts” of refusal of baptism and violation of fasting days].

The first advocate for the modern use of cremation was physician Sir Thomas Browne in 1658, but the organized movement to popularize it as an alternative to burial did not gain traction until another two hundred years later after the idea was presented to the Medical International Congress of Florence “in the name of public health and civilization,” followed by the publication of reports by various practitioners including Professor Ludovico Bunetti of Padua, whose model of cremating apparatus and resultant ashes were exhibited at the Vienna Exposition in 1873, attracting great attention from individuals including Sir Henry Thompson, a surgeon and physician to Queen Victoria.

Thompson returned home from the Exposition and became the first promoter of cremation in England as “a necessary sanitary precaution against the propagation of disease among a population daily growing larger in relation to the area it occupied.” Thompson also advocated that cremation would prevent premature burial, reduce the expense of funerals, spare mourners the necessity of standing exposed to the weather during interment and deter grave robbers. In January 1874, Thompson held a meeting of cremation advocates at his London home and formally founded the Cremation Society of Great Britain, “expressly for the purpose of obtaining and disseminating information on the subject and for adopting the best method of performing the process, as soon as this could be determined, provided that the act was not contrary to law.”

Legalization of cremation ultimately came about due to the acts of [one of my personal favorite historical figures] eccentric Welsh Neo-Druidic physician William Price (below) who, believing that it was wrong to bury a corpse because it polluted the earth, chose to cremate his deceased infant son’s remains instead – an act which was vehemently proscribed by society as highly improper at the time.

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Image: 19th Century Lithograph of William Price (Public Domain)

In the early evening of January 13, 1884, as Price prepared to cremate his son in an open air pyre, a number of locals noticed the fire and attacked him upon discovering what they interpreted to be his intent to burn the infant alive. Rescued from the angry mob by the police, Price was arrested while others retrieved the child’s body, which had not yet been engulfed by the flames, from the funeral pyre. After an autopsy revealed that Price’s son had died of natural causes, he was absolved of suspicions of infanticide but nevertheless tried for performing cremation rather than burial, which the police believed to be illegal.  Price, however, argued that while the law did not state that cremation was legal per se, it also did not state that it was illegal.  Much to the surprise of the police, the judge agreed with this argument and Price was freed to return home where he was welcomed by a crowd of supporters cheering his victory.  On March 14, 1884, Price was finally able to give his son the cremation he wanted.

In 1885 the first official English cremation took place, followed by another ten in the following year, and by 1892 a crematorium opened in Manchester, followed by another in 1895 in Glasgow, 1896 in Liverpool and 1903 in Birmingham.  The United States followed suit and began building crematories to dispose of bodies in a controlled environment for sanitary reasons, as a way to destroy any organic matter that could cause illness and give families a better way to preserve ashes at a time when many believed that people were getting sick by attending funerals of the recently deceased and that decomposing bodies were leaking into the water systems [which has since, of course, been proven to be false].

Ultimately, the Price case set precedent which, together with the advocacy of the Cremation Society of Great Britain, ultimately led to the Cremation Act of 1902, which deemed that any power to provide for and maintain burial grounds or cemeteries was to be considered to encompass crematoria; the Secretary of State was to create regulations for the maintenance and inspection of crematoria, the circumstances in which they could be used, and the creation of a register of such burnings; and all statutory provisions relating to the use of burial registers as evidence were to apply to these registers.

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Images:  Creative Commons (Public Domain)

As for William Price – whose [amazing] last words were “bring me a glass of champagne,” which he drank and died shortly thereafter on the night of January 23, 1893 – he was cremated on a pyre of two tons of coal, in accordance with his will, on the same hillside where he had originally intended to cremate his son. The open air cremation was overseen by his family and witnessed by 20,000 people [see, I told you he was awesome #deathgoals].

But the story does not end there.  Yes, the law may have legitimized cremation as a viable alternative means of disposition for human remains, but [as is often the case] religion – specifically the almighty Catholic Church – was not so quick to follow suit.

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Images:  Creative Commons (Public Domain)

While some Protestants came to accept cremation earlier on, with the rationale being that God can resurrect a bowl of ashes just as conveniently as he can resurrect a corpse buried in the ground, the practice remained strictly forbidden by the Catholic Church up until the 1960s as a “sinister movement” that was often associated with Freemasonry. Then, in 1963 the Vatican said that although burial should be the norm, cremation was no longer “opposed per se to the Christian religion” and made clear that Catholic funeral rites should not be denied to those who had asked to be cremated.  In 2016, the Vatican released new guidelines criticizing modern societies’ increasingly secular notions of the afterlife and the perceived trivialization of dead bodies by making the departed into mementos for the living instead of temples made in the image and likeness of God.  According to the new guidelines, cremated remains should be kept in a “sacred place” such as a church cemetery, ashes should not be divided up between family members, “nor may they be preserved in mementos, pieces of jewelry or other objects.”

And then, just as soon as cremation was finally able to take its rightful place and get comfortable among the ranks of status quo next to traditional burial – enter alkaline hydrolysis.  So here we are again, starting back at square one.

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Images:  Creative Commons (Public Domain)

Also known as Resomation, liquid cremation, green cremation or aquamation, alkaline hydrolysis is a water-based dissolution process for human (or animal) remains that uses alkaline solution comprised of water and water-soluble potassium salt (most commonly potassium hydroxide and/or sodium hydroxide), heat and sometimes agitation and/or pressure to reduce a body to its final mineral bone remains, which are then pulverized into a powdered ash and returned to the deceased’s family in an urn.  The process is akin to that of natural decomposition in soil, but at an accelerated rate – typically taking around three hours, depending on the type of equipment used – and ultimately returns the body to the natural elements of amino acids, peptides, sugars and salts, the end result being a green-brown tinted liquid akin to the liquefaction stage of decomposition. The liquid is considered a wastewater, which is typically released into the sewer system with the permission of the local wastewater treatment authority and in accordance with federal, state and local laws – which, while at first blush this may sound concerning, it is important to note that bodily fluids released during the autopsy and embalming processes already go down the drain – but can also be used in a garden or green space. The Catholic Church, however, is not too keen on the notion of “being poured down the drain” and thus considers alkaline hydrolysis [but not autopsies or embalming, curiously enough] to be disrespectful to the deceased.

The green funeral movement supports alkaline hydrolysis, along with a number of ecological campaigning groups, for using about 1/8th of the energy that flame-based cremation expends, while producing less carbon emissions and other pollutants – and no mercury emissions from tooth fillings like traditional cremation.  Despite its relatively recent availability to the public, the use of alkaline hydrolysis dates back to the late 1800s.  Interestingly, the Mayo Clinic has been using alkaline hydrolysis for over a decade for donor body disposition and medical schools in Florida, California and Texas have similarly been using alkaline hydrolysis for cadavers, although it is not currently an available option for the general public.

In the United States, alkaline hydrolysis as a means for disposition of human remains is currently “legal” in thirteen states, including Colorado, Florida, Georgia, Idaho, Illinois, Kansas, Maine, Maryland, Minnesota, Missouri, Oregon, Vermont and Wyoming – meaning that the statutory definition of “cremation” has been expanded to include alkaline hydrolysis as a form of cremation – with similar legislation pending in California, New Jersey, New York, North Carolina, Pennsylvania and Washington. Although alkaline hydrolysis was legal in New Hampshire for several years, it was banned in 2008 amid opposition by religious lobbying groups and a proposal to legalize the process was rejected in 2013.  A similar bill was introduced in the New York legislature in 2011, but it fizzled out largely due to opposition from the New York State Catholic Conference, which said, “[i]t is essential that the body of a deceased person be treated with respect and reverence…[and] [p]rocesses involving chemical digestion of human remains do not sufficiently respect this dignity.”

In September 2010, Jeff Edwards, a funeral director in Columbus, Ohio, purchased an alkaline hydrolysis machine and on the day the unit was installed (January 27, 2011), Edwards performed the first commercial alkaline hydrolysis disposition in the United States. Edwards completed 18 more of what he dubbed “aquamations” before the Ohio Department of Health issued a memo instructing officials not to accept death certificates or issue burial transit permits if alkaline hydrolysis was used – forcing him to stop offering this form of disposition to the families he serves – on the grounds that the Ohio Board of Embalmers and Funeral Directors had determined that alkaline hydrolysis is not a legal method of disposition in Ohio. Edwards filed suit against the Ohio Department of Health and Funeral Board asking the court for a temporary restraining order to block the enforcement of the Health Department’s memo, arguing that Ohio law allows for loved ones or others to choose what happens to a person’s body after he or she dies but does not give state agencies the right to authorize types of disposition.  However, this argument proved to be unsuccessful as the lawsuit was dismissed and subsequent legislation that would have permitted the use of alkaline hydrolysis in Ohio failed, once again faced with strong opposition from the Catholic Conference of Ohio.

Ultimately, what it really comes down to is semantics – with some states broadening their statutory definition of cremation to include alkaline hydrolysis by removing language about combustion and incineration, while others define alkaline hydrolysis and then incorporate that definition into their statutory definition of cremation, and then there are states with statutes that address alkaline hydrolysis as a separate method of disposition entirely but give the Funeral Board the same amount of control over its regulation that the Board already has over traditional cremation [Cremation Act of 1902-style].

It will certainly be interesting to see where the law goes from here – especially in the several states with pre-existing regulatory language that would allow alkaline hydrolysis without any modification, as was the case in Missouri where the definition of cremation was already accommodating and there was nothing restricting alkaline hydrolysis, so the Funeral Board simply reviewed and approved a draft rule providing additional clarification that alkaline hydrolysis is a permissible means of disposition in Missouri.

As William Price would say, just because something is not legal per se does not make it illegal.

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